Citation Nr: 1311194	
Decision Date: 04/04/13    Archive Date: 04/19/13	

DOCKET NO.  09-33 186	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas


THE ISSUE

Entitlement to service connection for bilateral peripheral neuropathy of the lower extremities, claimed as due to exposure to Agent Orange.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESSES AT HEARING ON APPEAL

The Veteran and his spouse


ATTORNEY FOR THE BOARD

Robert E. O'Brien, Counsel


INTRODUCTION

The Veteran had active service from June 1956 to September 1976.  This included service in Vietnam.

This matter comes before the Board of Veterans' Appeals (Board) from a May 2008 rating decision of the VARO in Waco, Texas, that denied entitlement to the benefits sought.


FINDING OF FACT

The Veteran died on January [redacted], 2013, during the pendency of this appeal.


CONCLUSION OF LAW

Because of the Veteran's death, the Board does not have jurisdiction to adjudicate the merits of the appeal.  38 U.S.C.A. § 7104(a) (2002); 38 C.F.R. § 20.1302 (2012); (see Veterans Benefits Improvement Act of 2008, Pub. L. No. 110-389, Section 212, 122 Stat. 4145, 4151 (2008).


REASONS AND BASES FOR FINDING AND CONCLUSION

Unfortunately, the Veteran died during the pendency of the appeal.  As a matter of law, a Veteran's claim does not survive his death.  Zevalkink v. Brown, 102 F.3d 1236 (Fed. Cir. 1996); Smith v. Brown, 10 Vet. App. 330 (1997); Landicho v. Brown, 7 Vet. App. 42, 47 (1992).  In Landicho, the United States Court of Appeals for Veterans Claims (Court) held that when a claimant dies during the course of an appeal, the appropriate remedy is to vacate the Board's decision from which the appeal was taken.  This would have the legal effect of nullifying any previous merits of adjudication by the RO because the RO's decision was subsumed by the decision of the Board.  See Smith, supra, at 333; 38 C.F.R. § 20.1104.

The Veteran's appeal to the Board has become moot by the virtue of his death in January 2013 and must be dismissed for lack of jurisdiction.  38 U.S.C.A. § 7104(a); 38 C.F.R. § 20.1032.

The Board's dismissal of this appeal does not affect the right of an eligible person to file a request to be substituted as the appellant for purposes of processing this claim to completion.  This request must be filed not later than one year after the date of the Veteran's death.  See Veterans Benefits Improvement Act of 2008, Pub. L. No. 110-389, Section 212, 122 Stat. 4145, 4151 (2008) (creating new 38 U.S.C.A. § 5121(a) substitution in case of death of a claimant who dies on or after October 10, 2008).  As provided for in this new provision, a person eligible for substitution will include "a living person who will be eligible to receive accrued benefits due to the claimant under Section 5121(a) of this title..."  The Secretary of VA will be issuing new regulations governing the rules of procedures of substitution upon death.  Until such regulations are issued, an eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of a claimant should file a request for substitution with the RO from which the claim originated (listed on the first page of this decision).


ORDER

The appeal is dismissed.


	                        ____________________________________________
	D. MARTZ AMES
	Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs